Phuong Canh Ngo - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2010] NSWSC 981 - NSWSC 2010 case summary

Supreme Court of NSW|2010-10-15|Before: Clellan CJ

CITATION : Phuong Canh Ngo - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2010] NSWSC 981

DECISION : Application should not be considered or further dealt with.

LEGISLATION CITED : Crimes (Appeal and Review) Act 2001

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PHUONG NGO - APPLICATION UNDER PART 7 CRIMES (APPEAL AND REVIEW) ACT 2001

DECISION 1 HIS HONOUR: Mr Phuong Ngo ("Ngo") was convicted following a trial by jury of the murder of Mr John Newman MLA. Mr Newman died when he was shot outside his Cabramatta residence at or very close to 9.30 pm on 5 September 1994. 2 There were three trials. At the third trial Ngo was charged together with Mr Tu Quang Dao ("Dao") and Mr David Dinh ("Dinh"). Both Dao and Dinh were acquitted but Ngo was found guilty and sentenced to life imprisonment. He appealed to the Court of Criminal Appeal but that appeal was dismissed. An application for special leave to appeal to the High Court was refused. 3 An application was made to the Chief Justice for an Inquiry into Ngo's conviction pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 ("the Act"). That application was granted and an Inquiry was held by Mr David Patten, a retired judicial officer. The Inquiry was comprehensive and held public sittings over 36 days. All interested persons including Ngo were represented. The lines of inquiry suggested by those representing Ngo were exhaustively pursued. The relevant evidence was obtained, carefully considered and reported upon by Mr Patten. (This included the evidence of two indemnified witnesses, Mr T and Mr N, relating to their involvement in prior abortive attempts to kill Mr Newman and in the murder plot itself.) In his reported dated 14 April 2009 Mr Patten expressed the following general conclusions (at [498] - [504]): "498 The Crown in a criminal trial has very limited opportunity to 'choose' its witnesses. So it was in this case that it became obliged to call witnesses who had themselves engaged in criminal activity. It was likely that the honesty and reliability of such witnesses would be severely tested in cross-examination and indeed it was. 499 Inconsistencies and discrepancies were uncovered which the jury, properly instructed, was required to resolve. My own assessment of the evidence however, is that overall at trial it constituted a strong Crown case against Mr Ngo. The factors which lead me to that conclusion include the probability, as it seems to me for reasons given above, that the evidence of Mr T and Mr N was substantially true; the lies and half truths which Mr Ngo told investigating police officers on 14 September 1994 and 14 December 1994 as to his movements on the night of 5 September 1994; his admission, ultimately, that he left the Club earlier than 9.30pm and was in the area of the murder when it occurred, despite earlier claiming that he did not leave the Club before 9.30pm; his admission that within 20 minutes of the murder, he had travelled in the direction of Voyager Point and into the area from which the south-east facing cell of Mobile Phone Tower 7 was designed to receive phone calls; the strong probability, in my view, that the gun found in the Georges River was indeed the murder weapon; the extent of his control and influence over the affairs and finances of the Club and its employees, including Mr T and Mr N; the establishment of motive; the evidence that he was seen standing near Woods Avenue Cabramatta on the night of 3 September 1994; evidence probative of the fact that his car was seen in Woods Avenue about the time of the murder; and the Telstra records which in some, albeit limited, respects provided support for Crown case. 500 I agree with the submissions of Mr Colefax and other counsel that material put before the Inquiry increased rather than diminished the strength of the Crown's case at trial. Such material included the second statement of Mr lade; Mr Ngo's admission of some familiarity with the footbridge at Voyager Point; and Dr MacLeod's abandonment of his opinion that the gun found in the Georges River was likely to have been there for a longer period than since the murder. Moreover, Mr Ngo's own evidence, which was not before the jury at the trial where he was convicted was, I believe, very destructive of his claim of innocence. There was much strength in his counsel's and solicitor's advice at the third trial that the risk of exposing himself to cross-examination outweighed the likely probative value of his evidence. 501 Regrettably, the strength of the evidence available against Mr Ngo was virtually ignored by his supporters in their submissions to the Inquiry. Unsupported allegations of gross impropriety were substituted for analysis of the facts. While Mr Selby's submission to the Chief Justice, on its face, raised matters calling for investigation, they lost all significance, in my opinion, when scrutinized at an open hearing and in the light of cross-examination and submissions by senior and experienced counsel. 502 Although in this report I have focused on the matters referred to in paragraph 17, which themselves were derived from Mr Selby's submission to the Chief Justice, I have necessarily reviewed all the available material, both supportive of the case against Mr Ngo, and supportive of his innocence. Although I have not seen many of the witnesses, I have had the considerable benefit of detailed analysis by counsel appearing at the Inquiry. 503 In the result, I find that nothing in the matters raised by Mr Selby, or otherwise now available, casts doubt upon, or raises, a sense of unease or disquiet in respect of the conviction of Mr Ngo. 504 It is appropriate that I repeat that nothing which has come before me suggests that the very difficult and complex investigation into Mr Newman's murder was conducted otherwise than thoroughly and competently by police officers dedicated to the task. Equally, there is no evidence that Mr Kaldas, at any stage of the investigation, acted improperly or without competence and diligence, apart from the minor error he made in giving evidence earlier referred to." 4 Mr Hugh Selby, an instructor in the Legal Workshop at the Australian National University, by email addressed to the Chief Justice sent on 15 February 2010, sought a further Inquiry into Ngo's conviction pursuant to Division 3 of Part 7 of the Crimes (Appeal and Review) Act 2001. Subsequently Ngo himself signed a letter seeking an Inquiry. The letter is undated but was forwarded to the Court on 4 June 2010. 5 The application by Ngo was supported by submissions from Mr Selby. Those submissions were referred to the Director of Public Prosecutions who has responded on behalf of the Crown. Mr Selby was provided with an opportunity to respond to the Crown submission and did so in a response dated 20 May 2010 (revised 3 June 2010). 6 Sections 78 and 79 of the Act are relevant. They are in the following terms: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) The Supreme Court may defer consideration of an application under section 78 if: (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or (b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or (c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered. (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)." 7 In large part the issues raised by Mr Selby were considered by Mr Patten. I have considered the matter in detail after reviewing the Patten Report and Mr Selby's submissions. I am not persuaded that there should be a further Inquiry into Ngo's conviction. In expressing my reasons for that decision I will not repeat the detailed account of the evidence in the Patten Report. However, any person interested in these issues should read these remarks together with the Report. 8 Mr Selby's submission and accompanying documents including his reply to the Crown submission are detailed. In analysing the detail it is necessary to put to one side his occasionally emotive use of language. He has expressed concern that he has been personally identified with Ngo and for this reason was criticised by Mr Patten. 9 Attached to Mr Selby's email of 15 February 2010 was a 24-page document entitled "Why the Patten Report on Phuong Ngo's conviction for the murder of John Newman MLA requires another Inquiry." In parts of the document, reference is made to Ngo's present psychiatric condition and a request made that he be transferred to another corrective facility. Those matters are of no relevance to the present application and I make no comment upon them. The circumstances under which Ngo is detained are a matter for the Department of Corrective Services.

Mr Selby's submission 10 As the Crown's response to Mr Selby's submissions identifies, there are seven principal issues raised by Mr Selby. They are as follows:

The impossibility of the timing relied upon by the Crown;

Evidence relating to particular telephone calls on 3 and 5 September 1994;

The Patten Report ignores new evidence about lack of motive;

Criticisms of how the Patten Report dealt with the possibility of Mr T and Mr N being brought together;

The murder scene and Mr T's presence at the murder scene; and

Reasons why the prosecution case collapses. 11 The Crown submitted that Mr Selby does not raise any matter which constitutes new or fresh evidence. It submitted that with the exception of issues 3 and 4, all of the matters now raised by Mr Selby could have been included in his submission made in support of the original application to the Supreme Court dated 22 May 2008. I believe this is correct.

Timing 12 Mr Patten comprehensively considered this issue in his report. He expressed no unease or sense of disquiet about the conviction as a result of it. The timing issue was also before the jury. It is significant because it is suggested that, given the necessary travel times, it was not possible as the Crown alleged for Ngo to have been present near the scene of the killing, and soon after the killing collect the murder weapon and dispose of it before 9.51 pm when he was known to be at a location where his mobile telephone could communicate with the Hammondville mobile cell tower. 13 Mr Selby submitted that in the course of the trial the Crown "repeatedly shaved off time from the police account." In his submission he analyses the events which occurred between 9.31 pm and 9.51 pm on the evening of 5 September 1994. The sequence and timing of the events advanced by Mr Selby is as follows: "i. Ngo and those travelling with Dao don't leave the Bowden/Huie Street area where the murder occurred, before 9.31 (not at 9.29 as the Crown had previously suggested); ii. Two minutes does not get a car from Huie Street to Townview where the murder weapon was allegedly given to Ngo. It takes four minutes plus; iii. While the prosecutor told the jury that Ngo could be at Townview at 9.31, the truth is that on the police case Mr Ngo could not be at Townview before 9.35 pm. iv. Someone in T's car then has to get out and take the bag with the gun across to that other car, hand it to Ngo, and then Ngo leaves. We're at 9.36. v. The drive from Townview to Ngo's home in Wellard Place Bonnyrigg (via Cabramatta Road, Elizabeth Drive) takes 4.5 minutes (in very light traffic and with good luck on the traffic lights) or longer. Accordingly, there is no time (for Phuong Ngo) to make the 9.40 call from his home phone and pick up some papers which was known to have been made." 14 It was the Crown case that Ngo took possession of the murder weapon at the Townview Road service station within a minute or two of the shooting and then travelled by car along a route which would allow him sufficient time to dispose of the gun where it was found in the Georges River at Voyager Point and return to the coverage area of the Hammondville mobile cell before making a mobile telephone call at 9.51 pm. 15 The Crown is critical of Mr Selby's analysis, which is apparently based upon an assessment which Mr Selby has himself made of potential travel times. He used the online program Google Maps to estimate distances as well as driving some routes himself. That assessment is not to be found in the evidence and contains expectations as to travel times which in my opinion are unlikely to be accurate. It must be remembered that the jury participated in two viewings of the scene (one at night) and were able to make a judgment of the distances and likely travel times drawing from their own experience. Critical to the analysis of the events is the observation of witnesses that the two cars which were observed near the murder were driven away "at speed." There is no reason to believe that they complied with speed limits or otherwise complied with traffic laws. Importantly, Mr Newman was killed in 1994. Traffic conditions would have changed in the local area in the last 15 years. Those changes are likely to be significant, causing longer travel times. 16 A witness who lived near the scene of the murder, Mr Macsyinczuk, gave evidence that he went outside after hearing four gunshots. He described a white car, which was most likely the car driven by Ngo, taking a corner at speed, screeching its wheels and taking off again at speed. Given that the persons involved were fleeing the scene of a murder, it is not surprising that the vehicles travelled at significant speed and that their travel times were accordingly abbreviated. 17 To my mind an analysis consistent with the Crown's submission is available. The Crown alleged that the time of the murder was at 9.29 or 9.30 pm. Mr Selby argued that it was at 9.31 pm or later. Having regard to the triple O calls made by Lucy Wang and Derek Mirfin, the jury was entitled to accept the Crown's timing. I would myself have reached that conclusion. 18 The significant issue is whether Ngo was at the service station in Townview Road at or very shortly after 9.31 pm. It was the Crown case that this was the time at which a gun was handed to Ngo. Immediately prior to this it is known that a telephone call was received by Ngo, who had possession of the Council mobile, the call being made from the Club's mobile and on the Crown case by Dinh. Mr T's evidence was that he overhead Dinh asking Ngo where he (Ngo) was. It is known that at the time this call was made at 9.31 pm, the caller was very close to the service station. The Crown case is that Ngo, driving the white car, left the scene of the murder immediately after it occurred and travelled at sufficient speed to enable the transfer of the weapon to have occurred at about 9.31 pm. 19 I am satisfied that it was open to the jury to conclude that Ngo could have reached the service station at Townview Road at 9.31 pm or very shortly thereafter. I do not accept Mr Selby's assertion that this could not have happened before 9.35 pm. 20 There is the further issue in relation to a telephone call which is known to have been made at 9.40 pm from the landline at Ngo's home. It is not certain whether Ngo made this call, although the Crown could not exclude the possibility that he did. Even if Ngo made the 9.40 pm call from his home, the Crown case was that there was sufficient time for him to have made the relevant movements. I accept the Crown submission that it would have been possible for Ngo to have gone from the service station to his home within the relevant time frame. 21 Mr Patten considered all of this evidence and expressed doubt as to whether Ngo would have had time to make the 9.40 pm call at his home, dispose of the weapon and be in a position to make the 9.51 pm phone call. Mr Patten had the evidence given by Ngo in relation to these matters, which evidence was not available to the jury. There was evidence from Thach Do (Ngo's newpher) in the second trial that made it "equally possible" that Thach Do used the landline at Ngo's home at 9.40 pm, an analysis which Mr Patten preferred. 22 Mr Selby submitted that the timing of two phone calls at 9.42 and 9.45 pm made from the fixed car phone in the white Camry (which the evidence indicates was being driven by Ngo) indicates that the police hypothesis that Ngo took the gun from Dinh and disposed of it cannot be correct. Mr Selby submitted that if Ngo took the weapon from Dinh at about 9.35 pm, he did not have time to make those calls and dispose of the weapon and drive back to a mobile telephone coverage area consistent with the 9.51 pm mobile telephone call. However, Mr Selby's submission is again dependent upon the time at which the weapon was collected being 9.35 pm. As I have already indicated, I am satisfied that the Crown's assertion that it was earlier could be accepted. 23 Mr Patten concluded that the significance of any exacting analysis of the Telstra records was diminished by Ngo's evidence in the second trial (which was not before the jury at the third trial) but which was before the Inquiry. Mr Patten said that Ngo: "… admitted that at the time of Mr Newman's murder at 9.30 pm, he was in the white Camry somewhere in the area of Mr Newman's home and that he later drove in a south-easterly direction on Heathcote Road as far as Walder Road, within the area designed to be covered by the south-east facing cell of Tower 7." 24 This was powerful evidence pointing to Ngo's involvement in the murder. 25 The Crown is critical of Mr Selby's submission and the route which he assumed Ngo took in his vehicle following the murder. It was submitted that Mr Selby misstated the Crown case. Importantly, the Crown did not contend that Ngo dropped off a press release to the local newspaper before disposing of the gun. It was the Crown case that Ngo threw the gun into the Georges River and then went back to the Mekong Club, dropping in the press release along the way. Contrary to Mr Selby's assumption, the Crown submitted that it was not necessary for Ngo to go home to collect the press release after the murder. In evidence which he gave at the second trial, Ngo agreed that the press release had been left inside his leather folder in the Mekong Club all weekend and was with him on the evening of 5 September. 26 I am not persuaded that the analysis of Mr Selby is likely to be correct. The jury were entitled to accept the Crown's analysis of the relevant events. I am not persuaded that any issue related to timing raises a doubt about the guilt of Ngo.

The phone calls on 3 and 5 September 1994 27 As I have indicated, much of Mr Selby's application is devoted to an analysis of phone calls made on 3 and 5 September 1994. Mr Selby complained that there were investigative failures with respect to the phone evidence and failures by Mr Patten to test relevant hypotheses as to the position of the phones when the calls were made. I do not propose to repeat the content of the submission which Mr Selby made to the Court in support of the present application. It was detailed and was the subject of a detailed response by the Crown. It was largely repetitive of matters put before Mr Patten. 28 Mr Patten's report indicated that he gave considerable attention to the telephone evidence and the analysis of it made by experts at the Inquiry. Mr Patten also had the benefit of Ngo's evidence, which was not available to the jury who returned the guilty verdict. I am satisfied that Mr Patten effectively considered the competing hypotheses relied on by the Crown and the defence as is evidenced by the final report. The competing hypotheses were also before the jury in the third trial. The Inquiry had the benefit of expert evidence to assist in interpreting the call records. Mr Patten was satisfied that the evidence had been properly placed before the jury and had not been given unwarranted probative value. Mr Patten's conclusion was that "nothing in the telecommunications evidence when considered in the light of Ngo's own evidence raised any doubt about his guilt." 29 Nothing in Mr Selby's submission on these issues persuades me that there is a doubt about Ngo's guilt or that further action should be taken.

New evidence about lack of motive 30 Ms Reba Meagher gave evidence to the Inquiry which was not available at Ngo's trial. Mr Selby submitted that Ms Meagher's evidence supported Ngo's evidence (given during the second trial and to the Inquiry) that he had no motive to kill Mr Newman, having been told by Mr John Della Bosca that Mr Newman would be disendorsed for the 1995 election. Furthermore, it was submitted that Ms Meagher's evidence was that Ngo told her that his interest was in obtaining an Upper House seat whereas Mr Newman held a seat in the Lower House. 31 Mr Della Bosca gave evidence in relation to these issues. He agreed that he had spoken to Ms Meagher prior to the death of Mr Newman and he agreed that he may have encouraged her to think that Mr Newman's seat might become available. However, Ms Meagher stated that she did not convey anything Mr Della Bosca had told her to Ngo. Mr Patten concluded that the only evidence that, before Mr Newman's murder, Ngo believed that Mr Newman may not be the endorsed ALP candidate for Cabramatta, was Ngo's own evidence. Mr Patten said that he was unwilling to accept Ngo's evidence and indeed rejected it, having regard to his observations of him and in light of Ms Meagher's evidence. 32 Ms Meagher gave evidence at the Inquiry that she had discussed Ngo's political ambitions with him and that he had told her that he wished to secure an Upper House seat. However, it was not the Crown case at the trial that the only motive for Ngo to murder Mr Newman was because he wanted Mr Newman's Lower House seat. The Crown said that there were three possible motivations for his killing, including the possibility that Mr Newman was an obstacle to him obtaining an Upper House seat. By killing Mr Newman he would have both the prospect of obtaining a Lower House seat as well as the alternate possibility of obtaining an Upper House seat. The death of Mr Newman would also mean an end to the "mud throwing" that Mr Newman was alleged by the Crown to have engaged in with Ngo "for many years." 33 There is no doubt there was considerable animosity between Ngo and Mr Newman. I am not persuaded that Mr Selby's submission raises any issue justifying further action.

The position of Mr T and Mr N 34 The suggestion by Mr Selby is that the evidence of Mr T and Mr N was contaminated by them being brought together. I am satisfied that this issue was fully dealt with in the Patten Report at [390]-[428]. There is nothing in the present submission which would justify taking further action.

Oddities in the accounts of Mr T and Mr N 35 There are discrepancies in the accounts of Mr T and Mr N which were acknowledged in the Patten Report. Mr Patten deals with the matter in [84]-[114] and [124]-[139]. In my judgment there is nothing in Mr Selby's submission which would justify the taking of further action.

The murder scene and Mr T's presence at the murder scene 36 Mr Selby raises a number of issues under this head. In relation to the murder scene, after recounting the evidence given by witnesses who described cars leaving the murder scene, Mr Selby asks two questions: first, "would a mastermind have the correct plates on the car that he is driving at the murder scene?" Second, "Mr Ngo not having been present at the earlier attempts, why is he now present?" The Crown submitted, and I accept, that these rhetorical questions are of no assistance in relation to the questions which I must decide. 37 Mr Selby raises a question as to whether Mr T was present at the murder scene as he claimed. Mr Selby again recounts the evidence that was before the jury in the third trial. He then contends that some independent corroboration or rebuttal of Mr T's claim to be in the murder car might have been found from testing whether the 9.31 pm call known to have been made from the Mekong Club mobile telephone to Ngo's Council-issued mobile telephone could have been made from within the Club or alternatively from the suspected road location proximate to the murder. It was the Crown case that the call was made by Dinh and Mr T gave evidence that the call was made in the vicinity of the intersection of Cabramatta Road and the Cumberland Highway. 38 Mr Selby also points to the evidence of Mr Le as conflicting with Mr T's claim to have been present at the murder scene. 39 As the Crown notes, Mr Le's evidence was before the jury in the third trial and was considered in the Patten Report at [158]. It was, as the Crown observes, for the jury to decide whether to accept Mr Le's evidence. 40 There is nothing in the matters raised under this head that would justify the taking of further action.

Reasons why the prosecution case collapses 41 Mr Selby provides a summary of his submissions in which he identifies six reasons why "the prosecution case collapses." In large part, these submissions repeat his earlier submissions in relation to the timing of Ngo's movements. 42 The first reason was said to be that Ngo must have been at or close to the murder scene at 9.35 pm. The Crown submitted that for the reasons already discussed, the Court should reject this submission. As I have indicated, Mr Selby's assertion that "there is no time to drive from the service station (c 9.35 pm) to Bonnyrigg, and then drive back to near the Walder/Heathcote roads intersection at 9.51pm" should not be accepted. The Crown also submitted that there was a real question as to whether Ngo made the 9.40 pm call. As I have indicated, there was another rational explanation for that call (i.e. that it was made by Thach Do). It was Ngo's evidence that he made the 9.51 pm call that caused Mr Patten to doubt whether Ngo had in fact made the 9.40 pm call. 43 The second reason related to the position of the relevant persons prior to the murder. There was evidence of a phone call being made from the fixed car phone in the white Camry to the Club mobile at 9.11 pm. Mr Selby claims that the evidence was that a phone call at 9.11 pm was received by Dinh in Dao's car while they were en route to Mr Newman's home. Mr Selby further claims that the killers parked the car and waited there for 10 minutes before the shooter (Dinh) got out to shoot Mr Newman. This is not consistent with the evidence of Mr T. Mr T's evidence was that this call was made 10-15 minutes after Dao parked in Bowden Street and that the car was parked there for a total of 20-30 minutes before Dao started the car and Dinh got out immediately prior to the shooting. Mr Selby's assertion that the killers' arrival time would have been 9.18 pm is not supported by the evidence. 44 The third reason was that Ngo could not have been present at the service station at Townview Road before 9.35 pm. This assertion was based on Mr Selby's assumption as to the time at which Mr Newman was shot and the speed at which the vehicles left the site of the shooting. I have already indicated that in my view, the suggestion that it was impossible for Ngo to have been at the service station before 9.35 pm should be rejected. 45 Mr Selby's reasons 4 and 5 are also dependent upon issues of timing. I am not persuaded that the movements which the Crown relies on are impossible. 46 Reason 6 relates to investigative failures which are alleged to have occurred in relation to the telecommunications evidence. I have already addressed these allegations at [27]-[29]. 47 There is nothing in any of the matters raised by Mr Selby which persuades me that there is a doubt about Ngo's guilt or that there are special facts or circumstances which justify the taking of further action.

Matters arising from Mr Selby's response 48 In his submission in response to the Crown's reply, Mr Selby raises a number of further matters which require comment. 49 Mr Selby remarks that the Crown failed to confront the question of why Ngo and his conspirators would proceed west immediately after the murder when the Mekong Club is north of the murder site and Voyager Point is southeast of it. Inherent in this submission is the assumption that every move the relevant person made on that evening was planned and each person knew what the other intended to do. The evidence makes plain that, although the killing of Mr Newman was obviously planned, there is no reason to believe that every person knew previously what the other proposed to do after the killing. 50 Mr Selby is also critical of the Crown's assertion that, according to Mr T's evidence, the 9.11 pm call was made 10-15 minutes after Dao, Dinh and Mr T parked the car near Mr Newman's home. Mr Selby said that the consequence of this account was to place Mr T's arrival at the scene before his departure from the Mekong Club. It may be that Mr T's evidence in this respect misstates the actual time they had been present. As I have written previously, memory particularly during traumatic events is notoriously fallible (see McClellan CJ at CL, "Who is Telling the Truth? Psychology, Common Sense and the Law", Paper presented to the Local Courts of New South Wales Annual Conference, August 2006). Any error which he has made has no relation to establishing the time at which Mr Newman was shot or the events that follow. 51 In relation to Mr T's evidence, Mr Selby submitted that it was not enough to test whether the 9.31 pm call could have been made from the location contended by the Crown; the "null hypothesis" (i.e. the hypothesis consistent with Ngo's innocence) ought also have been tested. This would have involved making test calls on the Club mobile from within the Club to the Council mobile, which would have been located either within the Mekong Club or between the Mekong Club and Ngo's home. I have already addressed this matter at [28] and remain of the view that the competing hypotheses were advanced before the Patten Inquiry and were fully considered. The Telstra analyst, Mr Wilson's evidence, which was given before the Inquiry, made it unlikely that the 9.31 pm call could have been initiated from within the Mekong Club. In addition, Mr Wilson's evidence at the third trial left both the Crown and defence account of Ngo's whereabouts at 9.31 pm intact. In particular, Mr Wilson said that the call could have been received at or near the Mekong Club or between Mr Newman's home and the Townview Road service station. 52 Mr Selby expands on his earlier submission that the circumstances surrounding Mr T's incarceration were not adequately explored. I have previously dealt with this matter at [34] and am not satisfied that this was the case.

Other matters 53 Mr Selby makes a number of other criticisms of the Patten Report. He also responds to criticisms which he believes were wrongly made of himself and attributions of material to him which were prepared by others. 54 There is nothing in these matters which, having regard to matters relevant to an application pursuant to s 78, requires comment. Mr Selby has made his position plain and it requires no further comment from me.

Conclusion 55 I have carefully considered the submissions made by Mr Selby and those made by the Crown. I have not described all of them in detail but I have discussed those of greater significance. I do not believe that more would be warranted. The issues which were raised have now been fully dealt with in the course of the trial at which Ngo was convicted and in the review conducted by Mr Patten. There has been an appeal to the Court of Criminal Appeal. In all the circumstances I am not satisfied that there is a doubt about Ngo's guilt. I am not persuaded that there are special facts or special circumstances that justify the taking of further action and accordingly I have decided that the application should not be considered or further dealt with. **********

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Phuong Canh Ngo - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2010] NSWSC 981

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